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HARVARD

LAW REVIEW

VOL. XXXII JANUARY, 1919 NO. 3

A NEW PROVINCE FOR LAW AND ORDER

II

UNDER this name there appeared in this Review in November,
191 5, an article written by me at the instance of the editor.
It gives in a summary form the results of my experience as Presi-
dent of the Australian Court of Conciliation and Arbitration. As
the article seems to have attracted some attention in America, and
also in Great Britain and Australia, it may not be amiss to report
progress after three more years; especially now that a national
labour administration has been created in the United States in
the charge of my friend, Professor Frankfurter.

This Court has not to deal with mere theories. It does not work
in the air — in the cloud-cuckoo town of Aristophanes. As I said
in 1915, the Court

"has to shape its conclusions on the solid anvil of existing industrial
facts, in the fulfilment of definite official responsibilities. It has the
advantage as well as the disadvantage of being limited in its powers and
its objects."

I propose to make this article supplementary to the former.
But, for the benefit of those who have not read the other, I may
say that the new province to be rescued from anarchy is that of
industrial matters. A court has been constituted under the Aus-
tralian federal constitution by virtue of a power to make laws with
respect to "conciliation and arbitration for the prevention and
settlement of industrial disputes extending beyond the limits of

190 HARVARD LAW REVIEW

any one State." Each of the six states of Australia has tribunals,
wages boards or courts, for industrial matters; but this Court was
created for disputes which pass beyond the boundaries of any one
state, disputes which cannot be effectually dealt with by state
laws. In recent years there have been proposals in the direction
of enlarging the powers of the federal court, and even of altering
the constitution by committing to the federal Parliament the
whole subject of labour; but I address myself to the court as it
stands under the existing constitutional power.

It is a court for compulsory arbitration — in the sense that its
awards are binding as law upon the parties. I have found that in
Great Britain as well as in America the idea of compulsory arbi-
tration is repugnant to the leaders of the working class, whereas
in Australia, facing different stars, the opposition comes principally
from the class of employers. In the earlier years of my work I
received through the post many insulting anonymous letters,
most of which I have kept as curiosities, and nearly all of these
letters came from partisans of the employers. The party with a
stronger economic position naturally wants to be free to act as it
thinks fit; it objects to be bound by orders from outside. The act
makes it the first duty of the Court to endeavour to get agreement
on the matters in dispute and to exercise its compulsory powers
only when an agreement is impossible; but when the party with a
stronger economic position refuses to agree on lines of justice in-
stead of economic strength the Court has to interfere by dictating
terms such as would, in its opinion, be just in a collective agree-
ment. The ideal of the Court is a collective agreement settled,
not by the measurement of economic resource, but on lines of fair
play. The stronger economic position is usually held, of course,
by the party which has the right to give or withhold work and
wages, the means of livelihood. It is usually held by the employ-
ers. This is the reason why the awards necessarily operate more
frequently as a restraint upon employers than as a restraint on
employees.

I desire to deal in particular with the constructive part of the
work of the Court. The awards have to be framed on some
definite system, otherwise in getting rid of one trouble you create
many others. Some years ago a friend who had had on one or two
occasions the function of reconciling parties to industrial troubles

A NEW PROVINCE FOR LAW AND ORDER 191

told me that he had found it best to put the leaders into a good
humour by getting them to dine together with him and to have
a friendly chat. A veteran leader of the shearers has written a
book in which, with much naivete, he recommends in the first
place that leaders of workers in conferences with employers should
first adduce the solid arguments, and then in the last resort make
a powerful appeal on behalf of the women and children — "give
them] the women and children hot." Neither of these courses
is permissible for the Court which has to deal, not with single
isolated disputes, but with a series of disputes. The awards
must be consistent one with the other, or else comparisons breed
unnecessary restlessness, discontent, industrial trouble. The
advantages of system and consistency in the awards are increas-
ingly apparent, as parties, knowing the lines on which the Court
acts and understanding its practice, often now make agreements
in settlement of a dispute in whole or in part without evidence or
argument. 1 The agreement if certified by the President and filed
in the Court is deemed to be an award. 2

In the previous article I have set forth a goodly number of
propositions laid down by the Court, and on looking through
them I cannot find that any of them have been overruled or set
aside. They have been amplified and applied to varying circum-
stances, and new propositions have been added. The claims for
the assistance of the Court have been so numerous that my col-
leagues of the High Court have come to my assistance, and in
particular Mr. Justice Powers, acting as Deputy President. Al-
though Mr. Justice Powers has had an absolutely free hand in
dealing with the disputes which he undertakes, I do not think that
in any essential or substantial point he has seen fit to reject any
of the propositions; but as I must take the sole responsibility for
any statements made in this article I confine myself to a review
of the position as it stands under my awards.

Minimum Wage

The Court adheres to its practice of dividing the minimum
wage awarded into two parts — the "basic wage" — the minimum

1 c/- Engine-drivers, 8 Com. Arb. 206 (1914); Tramway employees, 9 Com. Arb.
208 (1915); Marine stewards, 10 Com. Arb. 539 (1916).

2 § 24.

192 HARVARD LAW REVIEW

to be awarded to unskilled labourers on the basis of "the normal
needs of an average employee regarded as a human being living in
a civilised community"; and the other, the "secondary wage" —
the extra payment to be made for trained skill or other excep-
tional qualities necessary for an employee exercising the functions
required.

A curious controversy arose in 1915 as to the effect of awarding
a minimum rate. The act allows the Court 3 to prescribe a mini-
mum rate, and does not mention a maximum rate; and one would
have thought it sufficiently obvious that there is no breach of an
award on the part of a worker if he decline to take employment
at the minimum rate prescribed. The contrary view, however,
has been hotly urged, and some partisans of the employers, news-
papers and others, have gone so far as to call it a "strike" when
men refuse to accept work which is offered at the minimum rate.
In Webster's Dictionary "strike" is defined as "the act of quitting
work; specifically, such an act by a body of workmen done as a
means of enforcing compliance with their demands made on their
employers." But our act is clear on the subject. According to
section 4, "strike" includes the total or partial cessation of work
by employees acting in combination as a means of enforcing com-
pliance with the demands made by them or other employees on
employers. The question first arose in connection with "special
cargoes " in the case of the waterside workers (called, I believe in
America, "longshoremen"). These men were casual labourers
hired by the hour. They turned up at the wharf when a vessel
arrived and the foreman made his selection. The minimum rate
prescribed was i/9d. per hour. The union had claimed that wheat
should be treated as a special cargo so that the wheat carriers should
be entitled to a minimum rate of 2/- per hour. The Court had
refused this claim, as there seemed to be no sufficient difference
between wheat and other commodities for the purpose of a mini-
mum rate. But it appeared that certain members of the union
had adopted the practice of following the wheat ships from north
to south, and having acquired a certain dexterity in the handling
of wheat, had succeeded with some employers in enforcing the
payment of 2/- per hour. Under the exigencies of the war the

' §40.

A NEW PROVINCE FOR LAW AND ORDER 193

various wheat states had formed wheat pools, and the state govern-
ments were quite willing to pay the extra third per hour in order
to get the services of these men in loading the ships for export to
Great Britain; but they did not like to pay the extra third in the face
of the decision just given by the Court. The Court reassured the
employers of the wheat pool thus: 4

"It is not necessarily an unjust extortion for a man or a class of men
who make wheat-carrying a speciality, to demand more than the mini-
mum rate for his or their services. It is quite in harmony with the
principle of freedom of contract subject to the minimum wage that an
employer should seek by extra wages to attract men, who, as he thinks,
will give him extra speed and efficiency. The device of a minimum wage
will soon prove to be a bane instead of a blessing if the position be per-
verted as the arguments tend to pervert it. I can only say plainly that
there is no breach of the award or impropriety in a man refusing his
services in loading wheat unless the employer pay him more than the
minimum. It is all a matter for contract."

The extra third was paid. The wheat was loaded and carried to
the Allies, while at the same time no obligation was imposed on
all the exporters for the term of the award to pay a minimum rate
of 2/-.

The doctrine, however, which now appears to be a mere truism,
was attacked by certain newspapers and employers in a tirade of
abuse. The men, it was said, were actually encouraged by the
Court to " strike " for higher wages. Even if the legal position were
clear the Court was not justified in stating it, in suggesting higher
demands, and so forth. However, I took the first opportunity
of stating a case on the subject for the opinion of the High Court;
and the High Court, by a unanimous decision, upheld the doctrine. 5

It would, of course, be an astounding position if, while the em-
ployer remains free to give or to refuse employment at the mini-
mum rate, the employee were bound to take employment at that
rate. The employer has the formidable power of refusing to give
work to any particular man, the power even to put an end to all
his own business operations; why should not the employee be free
to refuse to take work? A minimum rate is in effect a restraint on

4 Waterside workers, 9 Com. Arb. 315 (1915), 10 Com. Arb. 1 (1916).
6 Waterside workers, 21 Com. L. R. 642 (1916).

194 HARVARD LAW REVIEW

the employer; a maximum rate would be in effect a restraint upon
an employee. The act gives power to prescribe a minimum rate,
and the object of that power would be defeated if a man who
thinks that his services are worth more than the minimum rate
were not free to hold out for a higher rate. Some employers pay
more than the minimum for the avowed purpose of attracting the
best men. Incidentally it may be remarked that the position as
now settled here is very far from justifying the fears of those who
look on provisions for minimum rates as tending to the establish-
ment of a "servile state." Mr. Belloc's dogma 6 that "the prin-
ciple of a minimum wage involves as its converse the principle of
compulsory labour," is not confirmed by such experience as I
have had.

The statement has often been made that the minimum rate
tends to become the maximum rate. I have not found it so. It
is quite true that far more employees get the minimum rate pre-
scribed than got it before the rate was fixed, for, before that time
they usually got varying rates, mostly below the minimum. I
have not found unions objecting to members taking extra pay for
extra usefulness; for instance, in building operations an expert
scaffolder often claims, and gets without objection, a higher rate
than the flat minimum prescribed; and leading hands in a labouring
process often get higher rates than their mates; 7 but unions object
to extra rates for extra servility, for disloyalty to one's comrades.

Offensive Jobs, Etc.

Connected with this doctrine are the propositions that the
Court does not attempt to discriminate in minimum rates on the
ground of comparative laboriousness, and that the Court will not
prescribe an extra minimum to compensate for unnecessary risks
to the life or health of the employee, or for unnecessary dirt. 8 For
instance, members of the Amalgamated Society of Engineers failed
to get an increase of rate under the name of "dirt money" when
handling dirty work. That is to say, the Court refused to increase
the minimum rate prescribed. 9 So, too, in artificial manure works,

• "The Servile State," 172.

7 Broken Hill, 10 Com. Arb. 200, 201 (1016).

8 Propositions 12 and 19 of the previous article.

* Broken Hill, 10 Com. Arb. 155 (1916).

A NEW PROVINCE FOR LAW AND ORDER 195

the employees asked for an increase in the minimum rate because
of dust and fumes. It was said that dust affected the air passages
and produced catarrh, etc.; but there was no evidence to show
how far, if at all, the dusty conditions operated to reduce the
effective wages. The Court was unable to express the injury in
terms of money. Of course, if the subject of defective arrange-
ments under which dust is produced come before the Court directly
as a grievance for regulation, the Court would have to decide the
matter as best it could; but employers must not be allowed to
purchase by money a right to injure health. The same principles
are applied to cases of excessive strain on employees, as by exces-
sive weights or excessive use of certain muscles or injury to clothes:

"This Court tends rather to refuse to make differences in minimum
rates except for clearly marked distinctions and qualifications, such as
craftsmen's skill, or exceptional responsibility, or special physical condi-
tion, necessary for the function. . . . Differentiation in minimum rates
prescribed must be made on broad lines." 10

On the same grounds the Court expressed disapproval of the
system of extra minimum rates for special cargoes handled by
waterside workers. When one special cargo was conceded by an-
other tribunal there were incessant efforts to make more cargoes
special, until at last the complaint was that all cargoes should be
special except case goods. No subject has caused more incessant
friction. There can be, however, no objection to a man refusing
to accept employment for a cargo which injures his health or is
beyond his powers, or if he think that he ought to get a payment
beyond the minimum. Beyond the minimum there is an ample
area for free bargaining.

Regulation of Employers' Methods

But although the Court does not prescribe a differential minimum
rate on the ground that a job is offensive or distressing, it has
sometimes to award directly on the subject when it is made the
ground of a substantive dispute. For instance, the waterside
workers complained that the weights put upon them to carry or
to wheel were too heavy; and the Court prescribed a maximum of

10 Artificial manures, 9 Com. Arb. 187-89 (1915).

196 HARVARD LAW REVIEW

1 cwt. for bagged ore to be lifted, a maximum of 5 cwt. for one
man using a two-wheeled truck (the truck itself weighs 2 cwt.), a
maximum of 200 lbs. for bagged cargo to be carried, a maximum
of 15 cwt. for two men using a trolley. 11 There were certain excep-
tions made; it was recognised also that the weight might vary
with the condition of the wharf; and, above all, there was no ap-
propriate scientific evidence of the kind that is collected in the
excellent work of Miss Goldmark, "Fatigue and Efficiency." But
interference on such subjects is rare. It is well known that the
Court is very chary about dictating to those that have to direct the
work as to the mode of carrying it out; 12 and that it will not dictate
conditions unless it be clearly shown that the mode adopted in-
volves undue pressure on human life. The Court usually refuses
to prevent the employer from having the work done as he thinks
desirable for his undertaking, 13 or to dictate the number of men to
be employed, 14 or to alter the functions of the respective officers, 15
or to prevent an employer from calling on an employee to work
extra hours if paid substantial extra rates, 16 or to prevent coastal
vessels from being at sea on Sundays, 17 or to prescribe the number
of retorts to be drawn and charged by a stoker in his shift, 18 or to
interfere with the choice of men for appointment or promotion.
The Court does not favour the arbitrary limitation of the proportion
of boys to adults if the employer finds that boys will answer the
purpose of his undertaking as well as men, and especially if he bind
himself to teach the boys a definite trade. But the position is
different if the boys would not be employed for certain heavy or
risky work except for their wages being lower — if the employer
would not employ boys but for the cheaper rate. 19 In one case the
Court refused to exempt any boys from the minimum adult wage
unless they were properly apprenticed. 20 Similar principles are

11 Waterside workers, 9 Com. Arb. 305-09 (1915).

12 See proposition 30.

13 Pastoralists, n Com. Arb. (1917).

14 Marine engineers, 10 Com. Arb. 528 (1916).

15 Postal electricians, 10 Com. Arb. 578 (1916).

16 Merchant Service Guild, 10 Com. Arb. 673 (1916).

17 Ibid., 214 (1916).

18 Gas employees, n Com. Arb. (191 7).

19 Linemen, 10 Com. Arb. 602, 613 (1916).

20 Butchers, 10 Com. Arb. 465, 495 (191°).

A NEW PROVINCE FOR LAW AND ORDER 197

applied in the case of women. If women are put to work more
suited for men, as that of a blacksmith, or even to work for which
men are equally suited, the women must get a man's minimum. 21

Directors of Industry

The Court does not ignore, however, the increasing demand of
employees for some voice as to the conditions of working, the un-
easy feeling that the employers, or rather their foremen, have an
autocratic power which is too absolute. Wages and hours are not
everything. A man wants to feel that he is not a tool, but a
human agent finding self-expression in his work. The Court tries,
therefore, to encourage by all the means in its power the meeting
of representatives of the unions with representatives of the em-
ployers. Such meetings produce a good effect, even when the
employers adhere to their methods, giving their reasons. For-
tunately there is no difficulty as to recognition of the unions. The
unions have come and have come to stay. Our act could not be
worked without unions. One of the chief objects of the act is,
under section 2, "To facilitate and encourage the organisation of
representative bodies of employers and employees, and the sub-
mission of industrial disputes to the Court by organisations."
Now the act n enables the Court to appoint "Boards of Reference,"
and such boards involve opportunities for meeting for discussion
of methods and alleged grievances. The difficulties which ihe
Court has to face as to such boards appear in a passage in a judg-
ment of last year, a passage which I take the liberty of setting out:

"The most serious difficulty that I see in the agreements and in this
award is the absence of the provision for a Board of Reference — a
Board in which the employer and the employed could take counsel to-
gether for the purpose of dealing with any grievances which employees
allege and which the directors and managers, owing to their remoteness
from the stress of actual operations, cannot realise. It is one of the signs
of the times, of which employers would do well to take heed, that the
workers are gravely dissatisfied, because they have no voice whatever
in the regulation of the conditions under which they spend so much of
their lives, that their opinions as to the possibility of preventing un-
necessary hardship are not to be treated as being of more account than

21 Fruit-growers, 6 Com. Arb. 61, 71 (1912). a § 40 a.

198 HARVARD LAW REVIEW

as if they were engines or horses. Many a grievance, or supposed griev-
ance, would be removed before it developed into a serious trouble by
a proper board of reference. I have hoped and worked for an agreement
for such boards in this case, one at least for each undertaking; but the
parties cannot agree as to the conditions. The companies want to insert
a provision that before a grievance can come before the board of refer-
ence it must be brought by the individual employee aggrieved before
his foreman or immediate superior. The union desires that the grievance
shall be brought before the management by the works committee of the
union, and then, if necessary, before the board of reference; but it is
willing, as a compromise, to agree that either the individual or the
board may approach the management. The companies unite in insisting
that the individual employee must first make the complaint. Such a
provision was not in the agreements of 19 13, and there is no evidence
that the lack of it has had any ill-effect. But the companies are firm on
the subject. It is suggested that I should exercise my power under
Sec. 40-A to appoint a board of reference. That section enables me
to assign to a board the function of dealing with "any specified matters
or things which under the award or order may require from time to time
to be dealt with by the board." Unfortunately these words mean,
according to a majority of the High Court, that I must specify now, in
my award, the specific grievances which the Board may deal with
(Federated Engine-drivers v. Broken Hill Company, 16 C. L. R. 245).
Apparently it is not enough for me to commit to the Board all or any
matters which may arise — even arise under the award or order. As
I have said in previous cases, it is impossible for me to specify before-
hand the grievances which will arise or be alleged. Whether the view
of the High Court is correct or not, I shall obey it. I had hoped that
Parliament would have come to the assistance of the Court by an amend-
ment of the section, but it has not done so. I cannot make use of the
section, at all events, so as to meet the circumstances of this case." M

The fundamental difficulty of the position seems to be that the
employer and the union look at the methods used from different
points of view. The employer — generally a company acting
through directors — looks at money results, at profits, at expenses.
The union looks at the results to the human instrument. Both
sides of the subject ought to be considered. It is significant that
the unions are always willing to have such boards, and the Court
often manages to get an agreement on the subject. The board of

23 Gas employees, 11 Com. Arb. (1017).

A NEW PROVINCE FOR LAW AND ORDER 199

reference has been the only means within the power of the Court
for meeting the increasing demand to which I have referred. It
meets the demand to a certain extent, and tends to further de-
velopments.

How the Basic Wage is Found

The "basic" or living wage, the minimum wage for the unskilled
worker, is the primary factor in the fixing of all wages by award;
and the fixing of the proper basic wage is necessarily of an impor-
tance that can hardly be exaggerated. It must vary with the cost
of living in the various districts: for instance, the basic wage for
the seaports would not be a proper basic wage for inland mining
districts such as Broken Hill. But sometimes by general consent
a uniform basic wage is desirable, as in the case of the waterside
workers or seamen; and the Court then takes as its guide the mean
cost of living for the several ports. In such cases it becomes possi-
ble to form some idea of the immense sums which an award of the
Court may transfer from the employing (or the consuming) class
to the employed. An increase of 1/- per working day for ten
thousand men means an increased expenditure of £156,500 per
annum; and there were about seventeen thousand men in the
union of waterside workers. In that case arbitration was sought
by about one hundred and fifty employers — trading oversea, in-
terstate, within a state. Not only in the vastness of the sums in-
volved, but in the effects on families and the proper nurture of
children, and in indirect consequences in all employments, the
responsibility of the Court is very grave. The decisions of the
Court probably affect directly more human lives than the decisions
of all the other courts. The Court has repeatedly invited full
enquiry on scientific lines as to the cost of living, but neither the
government nor the parties have yet responded. Preferably the
enquiry should be made by expert statisticians and on the basis
of distinct regimens, but the responsibility of fixing the basic wage
should be left with the Court. In the meantime the Court has been
obliged to work out the problem on the best materials that it can
get. At present the Court takes as prima facie evidence the find-
ings as to the cost of living on then existing habits in Melbourne
in 1907, and then it takes the statistician's figures as to the depre-
ciation in the value of money as against commodities as prima

200 HARVARD LAW REVIEW

facie evidence of the increase in the cost of living. The Com-
monwealth statistician has found that in Melbourne it took in
1916, 26/6d., to purchase commodities that could be purchased in
1907 for i7/6d.; and the decrease in the value of money is nearly
the same elsewhere. That is to say, the increase in the cost of
living is over 50 per cent, chiefly owing to the existing state of war.
It is a curious fact that there has been little or no attack on the
empirical finding of 1907 as to the actual cost of living. Employers
generally admit that the amount of 42/- per week was fair at that
time; but there have been of late strenuous attacks, on the statis-
tician's figures of increase. The statistician has taken some forty-
seven staple articles of food and rent as consumed by all classes of
the community, and has found the changes in price of those articles;
and he very properly adheres to the same articles and assumes
that they are consumed in the same quantities. He does not, as
some people fancy, pretend to show the cost of living in a wage-
earner's family, but he shows the depreciation in the value of
money as regards the selected commodities, and, as he says,

"in normal circumstances properly computed index numbers of food and
groceries and house rent combined form one of the best possible measures
of those variations in the purchasing power of money which affect the
cost of living."

Then the Court comes in, and, until the contrary be shown, infers that
the depreciation in the value of money which is found in relation to
the selected commodities is to be found also in relation to the other
commodities. This method is in accordance with the views and in-
tentions of the statistician; for he says "once a standard of living or
living wage has been fixed the tables published . . . can be legiti-
mately used as showing the variations in the cost of living." No
party is bound by these tables as by a matter of absolute irrefutable
law, but they are on the right method, and the Court makes use of
them until it can find better evidence. 24 The criticisms made hitherto
on the statistician's findings are made under a misapprehension.

It is the practice of the Court to let no consideration of competi-
tion with foreign countries reduce what is found to be the proper

24 Butchers, 10 Com. Arb. 477-84 (1016); Merchant Service Guild, 10 Com. Arb.
225 (1916); Gas employees, 11 Com. Arb. (1917).

A NEW PROVINCE FOR LAW AND ORDER 201

basic wage; 25 and this practice, it must be admitted to the credit
of the employers, has never been disputed so far as I know. The
proper sustenance of the persons employed (on the basis of family
life) is treated in effect as a first charge on the product.

Secondary Wage

With the secondary wage the position is different*. There is
more scope for compromise or arrangement. At the same time it
has been found inadvisable except in extreme circumstances to
diminish the margin between the man of skill and the man without
skill. One of the drawbacks of industry in Australia is that lads
do not learn their trades thoroughly — do not take the trouble to
become perfect craftsmen. There is a tendency to be content with
imperfect workmanship, to put up with the "handyman," and his
rule of thumb, to put up with what is "good enough"; and noth-
ing should be done by the Court which would lessen the induce-
ments to learn a trade and to learn it properly. 26

However, when the Court has increased the basic wage because
of abnormal increase of prices due to the war it has not usually
increased the secondary wage. It has merely added the old sec-
ondary wage, the old margin, to the new basic wage. It is true
that the extra commodities which the skilled man usually pur-
chases with his extra wages become almost indispensable in his
social habits as the commodities purchased by the unskilled man,
and have no less increased in price; but the Court has not seen fit
to push its principles to the extreme in the abnormal circumstances
of the war, and the moderate course taken has been accepted with-
out demur. I may add here that the Court, where necessary,
adopts gradations in the secondary wage. For instance, after
fixing the basic wage for unskilled labourers in the gas employees
case, it awarded 6d. per day for men classed as skilled labourers, 1/—
per day more for men in charge of plant, etc., 2/- per day more
for men of necessarily exceptional physical qualities, etc., such as
stokers; and 3/- per day more for artisans fully trained. 27 The
margin between the basic and the secondary minimum follows the
margin usually adopted in the time of unregulated practice.

25 Marine engineers, 10 Com. Arb. 532 (1916).

26 Butchers, 10 Com. Arb. 485 (1916). 27 Gas employees, 11 Com. Arb. (1017).

202 HARVARD LAW REVIEW

Hours

With regard to hours of work, the Court generally adheres to the
Australian standard of forty-eight hours per week. Any overtime
has to be paid for at higher rates; but there are some exceptions
to the forty-eight-hour rule. Fewer hours have been prescribed
where the occupation is very nerve-racking, where as in the case
of the builders' labourers the men have to "follow the job," and
now in the case of underground mines and smelters. 28 It may in-
terest American readers to know that as to underground mines
and smelting the Court availed itself of the reasoning of the Supreme
Court of the United States in the constitutional case of Eolden v.
Hardy? 9 In that case a state statute limiting the hours in mines
and smelters was upheld, notwithstanding the Fourteenth Amend-
ment of the Constitution, because the state legislature had regarded
the limitation as conducive to health and life. The work was not
only risky but also unhealthy. Lead poisoning and pneumonia,
were common. Special mention ought to be made here of the con-
duct of the men at the Port Pirie smelters. The lead ore which
comes from Broken Hill is smelted at Port Pirie, and the produce
is sent during the war to the British government. The men were
working seven shifts of eight hours, Sundays as well as ordinary
days, and they had been for years seeking a six-day week on a
rotation scheme; but they recognised that there was a shortage of
men suitable for the smelters and that without the fifty-six-hour
week the continuous process could not be kept up. So they asked
me to postpone the boon of shortened hours till after the war.
They did this as a gift to the nation for the purpose of the war, not
under compulsion in the interests of the employers.

On the other hand, the forty-eight-hour week is not a rigid rule
for all occupations. Sometimes the Court has fixed fifty- two hours
where the nature of the trade required it, and where the operation
has variety and is of an open air character, as in the case of certain
carters and drivers. 30 In the case of station hands (boundary
riders, bullock drivers, and generally useful men employed by
pastoralists) ; it was found impracticable to set any definite limit

28 Broken Hill, 10 Com. Arb. 155, 185-91 (1916).

29 169 U. S. 366 (1898).

30 Butchers, 10 Com. Arb. 496 (1916).

A NEW PROVINCE FOR LAW AND ORDER 203

to the hours except for those men who were employed at or about
the homestead; and in the case of the latter class the hours were
fixed at fifty-two with the general assent of employers. 31

In connection with the subject of hours I may mention two
curious facts tending to show a positive increase in efficiency and
in results arising from well-regulated pauses in muscular exertion.
In some industries — that of the waterside workers, for instance —
"smokos" have for many years been permitted in Australian
practice. I have been unable to find any analogue in America or
in Europe. A "smoko" is a cessation for a short rest period in a
run of work, a pause usually given without reduction of pay, and
experienced managers and foremen have assured me that the
"smoko" actually helps the working results. The men work with
"more heart." They take a "snack" or a "pull" at their pipes.
With the consent of the employers the court prescribed two night
"smokos" of half an hour each; but as a day "smoko" would in
many ports interfere with the work of the carters the matter of day
"smoko" was left to the discretion of the employers. 32 Another
fact is that in shearing operations where there are piecework rates,
so much per hundred sheep, the employers actually sought for
more pauses in the work than the union. Yet the employers' in-
terest is clearly on the side of brief time of shearing; for the over-
head expenses and the wages of men on daily wage run on all the.
time. The union asked for two four-hour runs of work between
8 A. M. and 5:30, with one meal between runs, instead of six runs
with two meals and three "smokes" interposed between 6 a.m.
and 6 p. M. The Court prescribed as requested by the employers. 33
The case of the waterside workers is a case of payment by time,
and yet the employers prefer to allow a pause, a deduction from
the time sold to them. The other case is one of payment by result,
piecework. Piecework tends to speed, but tempts to imperfect
workmanship; time-work tends to proper care but tempts to slow-
ness. In certain metropolitan abattoirs the manager prefers time-
work with a tally of fifty-nine sheep per day, although in export
meat works the average tally is eighty to one hundred a day. 34 In

31 Pastoralists, 11 Com. Arb. (1917).

32 Waterside workers, 9 Com. Arb. 293, 300, 317 (1915).

33 Pastoralists, n Com. Arb. (1917).

34 Butchers, 10 Com. Arb. 491 (1916).

204 HARVARD LAW REVIEW

the shearing of sheep of exceptional value it is usual for the em-
ployer to prefer payment by time wages. In piecework slaughter-
ing the inducement of greater pay was not sufficient to prevent the
union from asking for shorter hours. The employers opposed,
but they have a quaint device called "the clock." The foreman
tells the leading hand, the "clock-man" at what rate per hour he
wants the slaughtering done; and the employers say that this
course is taken to prevent the men from absenting themselves as
a consequence of over-exertion, as well as to ensure that the flesh,,
pelt, etc. are not injured by too furious a use of the knife. Speed
for the day is not the only thing to be considered.

Stoppages

The disputes brought under the attention of the President or
Deputy President, or under the cognisance of the Court, since it
was started in 1905 are very numerous. There must be several
hundreds apart from incidental applications, and the points in
dispute might almost be called infinite. The operations of the
Court now occupy most of the time of two High Court Justices,
but the expenditure of the time and labour will probably be thought
a good investment. For, though the disputes dealt with are many,
the stoppages of work are very few; and it is the prevention of
stoppages in operations required by the public that is the object
of the power given by the Constitution. The work of the country
must be carried on. The community requires that what it needs
shall be continuously supplied, and to that end it provides for the
redress of alleged grievances a tribunal which should render stop-
pages unnecessary. In a free country people may think they see
the way to a better industrial economic system, and they may
work towards that system, but in the meantime food, clothing,
and shelter must be provided, and other commodities. The need
for the day's food and supplies "subtends a greater angle" for the
time being (the expression belongs to O. W. Holmes, I think), than
all our theories, and above all the needs of those who are dearest
to us, as the most helpless, — the children. Their constitutions
and the future of the race must not suffer by privation. Men have

ever to

"Keep the young generation in hail
And bequeath them no tumbled house."

A NEW PROVINCE FOR LAW AND ORDER 205

In other words, the people are consumers as well as producers, and
the object of the power in the Constitution is primarily to protect
the people as consumers; and as incidental to that end to provide
means whereby producers can have their legitimate human needs
satisfied without recourse to stoppages. There should be no more
necessity for strikes and stoppages in order to obtain just working
conditions than there was need for the Chinaman of Charles Lamb
to burn the house down whenever he wanted roast pork. The
arbitration system is devised to provide a substitute for strikes
and stoppages, to secure the reign of justice as against violence,
of right as against might — to subdue Prussianism in industrial
matters. Unfortunately the public do not know all the disasters
from which they have been saved by the machinery of the Court.
They "do not see because they do not feel." They know the in-
conveniences to which they have been put, but they do not realise
the inconveniences from which they have been saved. In one case,
for instance, little noticed, some of the principal cities would have
been left without light but for the interposition of the Court. 35
However, something may be learned from a comparison. In Great
Britain, according to Mr. G. D. H. Cole, 36 the Board of Trade acting
under the Conciliation Act of 1896 dealt with five hundred and
ninety-seven cases up to the end of 191 2, and of those two hundred
and ninety-two involved stoppages; and in 1912 of the seventy-
three cases, thirty-four involved stoppages. That is to say, stop-
pages occurred in nearly half of the disputes handled. In the case
of the Australian Court I can recall only two stoppages extending
beyond the limits of any one state in disputes so extending, and
yet during the same period strikes in local disputes, outside the
competence of the Court, have been very numerous. People here
know what a gain there is in the fact that there have been no such
social upheavals as occurred in connection with the shearers and
the shipping employees before this Court was constituted. The
men know well that they cannot get arbitration if at the same time
they try to enforce their demands by stoppage of work. They
cannot have arbitration and strike too. I find that in the previous
article I stated that since the act came into operation there had

35 Gas employees, 11 Com. Arb. (191 7).

36 " The World of Labour."

2o6 HARVARD LAW REVIEW

been no strike extending beyond the limits of any one state. That
cannot be said now; but the exceptions are worthy of study.

The first was that of the coal miners at the end of October, 1916.
About 80 per cent or 90 per cent of the coal miners are in New
South Wales, but the miners of Victoria and of Queensland had
joined those of New South Wales in a federation. At the request
of the federation the President held a conference in June, 1916.
The principal subject of dispute was a claim for eight hours bank
to bank, and no agreement was reached; but certain concessions
were accepted to tide over the time till arbitration, and the Presi-
dent promised to give the case, for certain reasons, precedence;
but when the case came on it appeared that in several of the mines
the men were taking the hours which they sought. The union
officials were not obeyed. The Court refused to proceed with the
arbitration until the men resumed the former hours: — "I shall
certainly not go on with arbitration with my hands tied, and my
hands would be tied if the men were getting by direct action . . .
that which they are asking me for." 37 There followed several
adjournments with the view of allowing the officials of the federa-
tion to use persuasion, but the matter was complicated by the
bitter opposition of the unions to a proposal for conscription, and
by an extraordinary antipathy to the Prime Minister, Mr. Hughes.
They passed resolutions not to work except on the conditions
named, and the work was stopped on or about the day of the refer-
endum. The position was very serious. The stocks of coal avail-
able for the gas companies were running very low, especially in
Sydney. The Prime Minister held a series of conferences in which
he found that the miners were firm in their refusal to work unless
they got the eight hours bank to bank, and the employers insisted
that if this concession were granted they would have to raise the
price of coal. The Prime Minister asked the President to deal
with the case as under a recent War Precautions Regulation (of
doubtful validity), and, as incidental to the concession as to hours,
to find what additional price the mine-owners might charge for
coal. All such proceedings were outside my proper functions, but,
as the Prime Minister was in great difficulty, I was willing to enter
upon the enquiry as to the claim for the eight hours under our own

37 Coal and shale employees, 10 Com. Arb. 246 (1916).

A NEW PROVINCE FOR LAW AND ORDER 207

act — not at the instance of the union, but on the application of
the Prime Minister and if the mine-owners concurred. But I
stipulated that my hands must be free either to grant or refuse the
eight hours as should seem just. The Prime Minister then, by
other machinery — (assuming it to be valid) — caused the claims
of the miners and the mine-owners to be granted without evidence
and without argument as to the eight hours, the union undertaking
that there should be no further trouble during the war. It is not
seemly that I should make use of this review for the purposes of
putting my view of the action of the Prime Minister, but those
who care to follow the controversy will find it in the eleventh or
twelfth volume of the reports of the Court. The consequences
of the action were certainly disastrous. The union failed in its
undertaking; there were frequent local stoppages; and at last in
August, 191 7, the men of the union, with the approval of their
leaders, struck work in sympathy with the railway employees of
New South Wales — of which I shall say more presently. This
Court, at all events, was preserved from a course which would have
fatally injured its character and its influence.

The second case occurred about June, 19 17. The glass bottle-
makers of three cities suddenly struck work. At the request of
the employers the President called a conference. The dispute was
as to payment for defective machine-made bottles. Nothing would
induce the men to return to work unless their demand was conceded.
According to their leaders, the men thought that the employers
would yield rather than have their furnaces extinguished and their
plants idle, but the employers did not yield. The President gave
his sanction to a prosecution for penalties. Certain penalties were
imposed and the men had to return to work on the employers' terms.
A refusal of this kind to accept arbitration is unprecedented, and I
have not been able to understand it unless it be an explanation that
the industry depended on imported German or Austrian glass-
blowers. 38

In addition to these two cases there has been a "sympathetic
strike" on the part of a registered union; but it was not in support
of any dispute of which the Court could take cognisance. In August,
191 7, there was a strike of engineers and others in the state railway

* 8 Glass bottle-making, 11 Com. Arb. (1917).

208 HARVARD LAW REVIEW

works of Sydney. The engineers struck work because the Railway
Commissioner of New South Wales (the railways belong to the
state) was introducing some card system for recording the time
taken by each man in several operations. Then the other railway
men, engine-drivers, stokers, etc., struck in sympathy, then the
Sydney tramway men (government tramways), then the coal
miners, then the waterside workers, the seamen, and so on. The
strike of the waterside workers extended to the principal ports of
Australia. The waterside workers were actually working under
an award of the Court; yet it is surely significant that the alleged
grievance from which this general strike started was not within
the competence of this Court, could not be handled by this Court
under the law: for two reasons, each sufficient in itself, (i) The
dispute as to the card system was a dispute between a state "in-
strumentality" and its employees; and according to a decision of
the High Court given in pursuance of the American doctrine of
McCulloch v. Maryland, etc., this Australian Court of Conciliation
cannot touch a state "instrumentality"; 39 (2) the dispute as to
the card system was confined to one state. It is not even an offence
under our act for men to strike on account of a dispute as to an
industrial matter if the dispute be confined to one state. 40 It ap-
pears that the leaders of the railway men in Sydney asked the
government to refer the dispute to the Arbitration Court of New
South Wales, and that the government declined. I have not been
able to ascertain the ground for the refusal, but at all events it is
clear that our Australian Court could not deal with the root of the
trouble.

Nevertheless, the operations required by the country at the
wharves had ceased, and it became the duty of the Court to do
anything in its power to get the operations resumed. Therefore
on the thirtieth of August, 191 7, the Court at the instance of some
thirty employers struck out of the award a clause which embarrassed
them in making use of outside labour. The Prime Minister, however,
had been President of this union, and he evidently thought that
something drastic should be done by way of punishment to the
members. The public were alarmed and indignant at the wide-

39 Federated railway association, 4 Com. L. R. 488 (1906).

40 Coal and shale employees, 24 Com. L. R. 85 (1917).

A NEW PROVINCE FOR LAW AND ORDER 209

spread suspension of activities. The mode of punishment which
the Prime Minister chose was the cancellation of the registration
of the union in the registry of the Court. So he got the Governor-
General to sign a regulation as under the War Precautions Act to
enable him to cancel the registration of any union on strike if regis-
tered in the books of the Court. On the very day that the regulation
was published, the Prime Minister caused an application to be
made to the President for a rule nisi for the union to show cause
before the Court why the registration should not be cancelled. This
seemed to the President to mean "You must cancel; for if you do
not cancel I shall myself cancel." Such an attitude recalls the
efforts of the Tudor and Stuart sovereigns to interfere with the
judges in the execution of their duty, and especially the amusing
controversy between James I and Lord Coke in the evocation case;
but the President granted the rule so that the matter might be
discussed. It turned out in the argument that the Prime Minister
thought by cancellation to destroy the award; but this was a mis-
take, for an award is not destroyed by cancellation of the registra-
tion of the union. The Court discharged the rule. The grounds
were that the powers to cancel were not to be used as an instrument
of fruitless vengeance; that the cancellation would not free the
employers from the obligations of the award; that it would be un-
just to members at ports at which there was no strike; that it would
free the property of the union from penalties for future strikes;
that it would prevent the union from suing members for breach of
its rules, that it would deprive the registrar of his power to get
returns of members, officers, etc. ; that it would make it difficult to
know whom to summon to conferences. Moreover, the strike was
against the advice of the executive union, and the union was now
induced by the President to alter its rules so as to give to the execu-
tive more control over its members and branches, and so as to
forbid strikes without the consent of the executive. Deregistra-
tion would not conduce to industrial peace, but would turn a public
responsible body into an underground, irresponsible combination. 41
It is curious indeed to observe how, under the southern sky, the
position has been reversed, and the registration of unions which
nearly led to a labour revolution in France in Waldeck-Rousseau's

41 Waterside workers, n Com. Arb. (1017).

210 HARVARD LAW REVIEW

time, about 1884, has become a desideratum of the union, is re-
garded by the unions as a privilege. The Prime Minister was very
much displeased; but he did not attempt to make any further use
of his supposed power under the regulation.

I have felt it necessary to state these three exceptions at some
length. In the first case, to speak summarily, the trouble was
mainly political. In the third case the Court had no jurisdiction —
it was forbidden to touch the root of the trouble. But the second
case was a clear case of strike for conditions of work which ought
to have been submitted to the Court. It is satisfactory to find that
in none of those cases was the strike owing to the failure, or alleged
failure, of the Court to grant justice in any dispute as to which it
had jurisdiction. It is significant also that the widespread strike
of August, 191 7, was in a dispute which was outside the jurisdiction
of this Court, and which was not submitted to the court of the state
in which the dispute occurred.

Sympathetic Strike

The occurrences of August, 1917, have led to the consideration
of the proper mode of dealing with the "sympathetic" strike.
The difficulty is mainly a psychological difficulty — it might be
called a moral difficulty. What is a man to do who wants to lead
a peaceful life, but whose comrades refuse to work in order to aid
other unionists in their struggle with other employers? He wants
to be true to unionism and his comrades. He hates the idea of
taking advantage of his comrades' self-denial, of taking a job that
one of them might get but for making common cause with those
who have an alleged grievance:

"The pathetic feature of the position is that most of the men think
that by ceasing work in sympathy with the New South Wales railway
men they are doing what is virtuous — sacrificing themselves for their
fellows: or, putting the matter in another way, they are afraid of being
charged with perfidy towards other unionists. If men in a union could
be brought to see that their duty to the public, to their humankind, is
higher than their duty to other unions (whether the other unions are
right or wrong) the problem of sympathetic strikes would be nearly
solved. If they could be brought to weigh the probabilities of advantage
coming to the fighting union from the sympathetic strike against the

A NEW PROVINCE FOR LAW AND ORDER 211

certainty of general loss, unemployment, misery, this would also help to
the solution of the problem." 42

Transport workers, especially, of all kinds, are always made to
bear the brunt of the struggles of other unionists. The grievance
is not the grievance of his union and there is nothing for the Court
to arbitrate about, no subject matter in dispute between the sym-
pathetic striker or his union and any employer. It may be said
that an arbitration court cannot be expected to achieve the im-
possible, that it must stop short of a case in which there is no
alleged industrial grievance as between the sympathetic striker
and his employer, and that the Court ought not to attempt to take
away the right of every man to put his hands in his pockets and
to say, "I shall not accept the work offered — no matter what my
reason may be." Individual freedom of action to work or not
to work must be preserved at all costs; and yet it cannot be right
that the community should be wilfully held up in its necessary
activities when the community provides means for preventing the
oppression of the poor for their poverty. It would be a great gain
to the community if each union were to confine its efforts to its
own grievances. In the case of the engine-drivers, a class of workers
whose members are found in all sorts of undertakings, the Court
intimated that an award for such a craft should be regarded as a
special privilege entailing special obligations, and asked what the
members would do for instance in a strike of miners — would
they lower and raise the officials and any men remaining at work?
The leaders of the union were reasonable, admitted that the
members should do so, and gave the Court an undertaking to that
effect. Then, in the case of the Merchant Service Guild, I found
that the masters and officers of the vessels were required to con-
tract to do manual work if and when required. This was obviously
meant to provide for the case of the seamen or others striking.
The guild objected to this clause, and the Court forbade the inser-
tion thereof in any contract. The masters and officers were to
carry out their own function, whatever men of other unions did.
In the case of the waterside workers just quoted, where so many
members joined in a sympathetic strike in aid of the New South
Wales railway employees — employees whom the Court had no

42 Waterside workers, 30 August, 1017, n Com. Arb. (1017).

2X2 HARVARD LAW REVIEW

jurisdiction to touch — the union consented to give a bond ren-
dering the union liable to £50 for each time that any two or more
members of the union in combination struck work or refused to
accept work as a means of enforcing compliance with any demand
made by them or in their behalf on any respondents bound by
awards of the Court in favour of the union or with any demand
made by any other union on any employer or employers. It was
gratifying to find that the leaders of the union accepted the posi-
tion as a fair one —

"that in conceding to members of the union safeguards of the kind now
suggested the Court should require the members to forego combination
to enforce demands on the employers while preserving their individual
independence — their full liberty individually to refuse or to take work
offered. For the work of the country must be done, and so long as the
law provides an appropriate remedy for any injustice the remedy of
withholding labour in combination in such a way as to prevent necessary
operations is intolerable." *•

I may add that the union so altered its rules as to make it prac-
tically a breach of loyalty to the union to strike or refuse work in
combination without the consent of the central executive. The
union applied to the Court to restore the privilege of preference in
employment, a privilege which had been conceded to the union
by voluntary agreement with the employers on representations
made by the union that there would be no stoppage of operations;
but in the meantime the employers had terminated the agreements
in pursuance of the powers therein, and had succeeded in getting
their work done by others under promises that these others would
get preference in employment; and the Court refused to interfere.
It did not grant preference to the so-called "loyalists"; but it
declined to give preference to members of the union and thereby
interfere with arrangements which were successful so far as achiev-
ing a result which the public needed so badly, especially under
war conditions. The ships were being loaded and unloaded, and
that was enough. In another case the Court dismissed the matter
of the dispute, refused to arbitrate for a union whose members
were involved in this sympathetic strike. The Court had cog-
nisance of a dispute on the application of an association of iron-

43 Waterside workers, 28 June, 1018, 12 Com. Arb. (1018).

A NEW PROVINCE FOR LAW AND ORDER 213

workers. Information having been received that the members —
about three thousand — had struck work in New South Wales in
sympathy with the New South Wales railway men, the president
directed the case to be put in his list with liberty to any party to
file affidavits. It appeared that the members, though engaged in
manufacturing steel for rails and rifles required by the British and
Australian and state governments, had struck; and the court dis-
missed the dispute under a clause of the act empowering the Court
to dismiss it if further proceedings are not desirable in the public
interest. 44

"This Court has repeatedly expressed the value which it attaches to
unionism and with no uncertain voice, but this Court cannot help
unionism in a struggle against the public interest." ®

It is hard to see what more could be done by the Court, a court
created by and for the public of Australia. It remains to be seen
how far these methods will be successful. The only complete
remedy is the adoption of a clearer and higher ideal of duty. The
moral and psychological problem remains.

Improvements in the Law, Etc.

I referred in the previous article to the applications previously
made to the Court for prohibition against the president for alleged
excess of the constitutional powers. The applications mostly
turned on the meaning of the word "dispute," or the words "ex-
tending beyond the limits of any one State"; and the prohibition
proceedings were extraordinarily long and costly. The Court of
Conciliation might take weeks in investigating the merits of the
case and in making an award, and then any one dissatisfied party
might bring proceedings for prohibition on the ground that there
was no "dispute," etc. The proceedings were generally unsuccess-
ful, it is true, but the uncertainty as to being able to hold an award
should they get it, deterred many unions from approaching the
Court for relief instead of stopping work. My American friends
will be pleased to know that this obstacle to the usefulness of the
Court is no longer formidable. In the first place the High Court has
better defined the meaning of the words by certain decisions; and

44 § 3 8 *• * Ironworkers, n Com. Arb. (1917).

214 HARVARD LAW REVIEW

in the second place Parliament has amended the act by enabling a
Justice of the High Court to decide whether there is a "dispute
extending" or not, before arbitration, and his decision is final. 46
Now, when a dispute extending is not admitted an application is
made to the Justice of the High Court for such a decision before the
case is dealt with in the Court of Arbitration.

Another great addition to the usefulness of this Court has been
made by a decision of the High Court to the effect that the Court
of Conciliation has jurisdiction to "prevent" an industrial dispute
extending by taking the quarrel in hand and even making an
award as to it before it extends to other states. 47 For instance,
there is a dispute at the port of Rockhampton. If it be not settled
there the members of the union in the ports of other states will
probably treat the vessels which come from Rockhampton as
"black" and refuse to work them. The Court of Conciliation in
such circumstances has on several occasions settled the dispute
before it has extended. 48

The utility of the power conferred on the President to call a
compulsory conference of representative disputants has been time
after time demonstrated. Frequently the conference has pre-
vented a local strike which was imminent. Frequently, arrange-
ments are made for carrying on work until award: frequently,
quarrels are settled or agreements are made as the result of a con-
ference. The power to call a conference is discretionary; and if in
any locality members of the union have struck work the President
refuses to call a conference unless work is resumed in the mean-
time on the old terms (that is to say, refuses to call a conference
at the instance of the union). This refusal has on some occasions
set the wheels of industry going again until the award has been
made.

Since the previous article, employers more frequently than
before seek the assistance of the Court for the settlement of dis-
putes. They often ask for compulsory conferences. For instance,
the fruit-growers at the interesting settlements of Mildura and
Renmark on the Murray River had, year after year, much trouble

40 § 21 aa.

47 Merchant Service Guild, 16 Com. L. R. 591 (1913).

48 Waterside workers, 10 Com. Arb. 429 (1916); Merchant Service Guild, 10 Com.
Arb. 214, 228 (1916).

A NEW PROVINCE FOR LAW AND ORDER 215

with the seasonal employees for picking, packing, etc. An award
was made in 191 2, at the instance of the Rural Workers Union
and another, and the work went on for the term of the award,
three years, without any conflict. When the term expired the
union had been disbanded, its members having joined the Austra-
lian Workers Union. The employers wanted to get the same
award as between themselves and the Australian Workers Union,
and the latter union was willing to accept the same award; but
there was no dispute and, therefore, the Court had no jurisdiction.
Subsequently in view of the increase in the cost of living the Aus-
tralian Workers Union made a demand for higher wages, etc.
This demand was disputed, and then the Court got jurisdiction.
After a discussion in conference an agreement was made and filed,
and the work went on smoothly. 49 This case, however, points to
the inconvenience of limiting the jurisdiction of the Court to dis-
putes. It may be that the same power that deals with the disputes
should be enabled to regulate labour where necessary.

The President has frequently been asked to act in a one-state
dispute as voluntary arbitrator on an ordinary submission by
agreement. The request has generally to be refused but in excep-
tional cases the Court has acted at the request of Ministers of a
state or of the Commonwealth, especially where the matter affects
the defence of the Commonwealth.

Another encouraging feature of the position is that the practice
of arbitration, instead of the practice of strike, is favoured by all,
or nearly all, the greater unions. Federal unions are frequently
constituted with the avowed view of making common cause in the
several states as to existing grievances, and of getting the Court to
settle the dispute all round. The Australian Workers Union —
the greatest union in Australia, comprising about seventy thousand
members in pastoral, farming, and other rural occupations — is a
staunch supporter of the work of the Court. Formerly there was
continual trouble with the shearers, shed hands, wool pressers, etc.
There was no certainty that the pastoralists could get their work
done; and yet wool is probably the principal export of Australia.
Since the constitution of this Court there has been no general
strike of these men. There have been some local troubles, but the

49 Fruit-growers, 9 Com. Arb. 288 (1915).

216 HARVARD LAW REVIEW

executive of the union brings all its influence to bear in favour of
waiting for the Court. In 191 1, the Court gave an award which
did not increase the existing rate for shearing (24/- per hundred),
and it actually reduced some rates for wool pressers; and although
in the succeeding years the cost of living increased to a formidable
extent, the executive of the union insisted on the members taking
employment under the award conditions until the Court should
deal with an application for an advance. In 191 7 the union came
before the Court for an advance to 30/- per hundred, and with the
consent of the employers who appeared, the Court prescribed that
rate. The same union recently took under its wing the workers
called " station hands " — boundary riders, bullock drivers, and
generally useful employees on the huge pastoral properties. The
conditions of these station hands had hitherto been wholly unregu-
lated. The men were paid wages which were wholly inadequate
for family life — some 20/-, some 25/- per week or less. The
Court granted them the basic wage, but allowed the employers to
satisfy the wages in kind by allowances and perquisites (such as
residence and provisions) to an amount not exceeding 30/- per
week, provided that the value of the allowances and perquisites
be approved by a board of reference or by a union official. I have
found gratification expressed in unexpected quarters on account
of this approach to the solution of a very difficult problem. One
of the drawbacks of Australia is the want of population in the
back country, the drift to the cities, to occupations which are reg-
ulated, and which provide opportunities for family life. On the
whole, and although it involves great difficulty and much toil, I
am safe in saying that this interesting Australian experiment is so
far a success, and that there is not the slightest indication of any
movement to revert to the old anarchic state. There are plenty of
suggestions, however, for the improvement of the system.

There is a very real antinomy in the wages system between
profits and humanity. The law of profits prescribes greater re-
ceipts and less expenditure — including expenditure on wages
and on the protection of human life from deterioration. Humanity
forbids that reduction of expenditure should be obtained on such
lines. Other things being equal, the more wages, the less profits:
the less wages, the more profits. It is folly not to admit the fact
and face it. Moreover the economies which are the easiest to

A NEW PROVINCE FOR LAW AND ORDER 217

adopt in expenditure tend to the waste and degradation of human
life — the most valuable thing in the world; therefore so long as
the wage system continues there is need of some impartial regulat-
ing authority. Even if the wages system were to be abolished to-
morrow, as some thinkers desire, if in some way the producers had
an equal influence on the mode of producing and equal opportunity
for self-expression in the product, there would be need still for
regulation. In proposition 30 of the previous article it is stated
that "The Court refuses to dictate to employers what work
they shall carry on, and how, etc." For "employers" substitute
"elected directors of industry," and the proposition would remain
sound. Even elected persons are sometimes found indifferent to
the legitimate claims of a minority. Even unions have been found
to disregard the just interests of craftsmen in their ranks, if the
craftsmen are few in numbers. Those who favour new systems as
the result of some cataclysm or catastrophe or revolution, and
treat with scorn industrial tribunals as mere alleviations, or as
mere devices to bolster up the existing system, had surely better
reconsider their opposition. Let not the better be always the
enemy of the good.

Henry Bournes Eiggins.

Melbourne, Australia.
August 2, 1918.